Michael A. Gallardo argued the cause for respondent (Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, attorneys; Mr. Gallardo, of counsel and on the brief; John J. Megjugorac, on the brief).

Before Judges Grall, Simonelli and Accurso.

PER CURIAM

By leave granted, defendants Olde Queen's Tavern and Namelle Property, LLC appeal from the October 19, 2012 Law Division order, which granted the motion of plaintiff Julian Salazar for a new trial. We affirm, but for reasons other than those expressed by the trial judge. Aquilio v. Cont'1Ins. Co. of N.J., 310 N.J.Super. 558, 561 (App. Div. 1998).

The record reveals the following facts. On January 29, 2009, plaintiff, a twenty-one-year-old college student, met a friend at approximately 9:50 p.m. Plaintiff consumed a large sandwich before driving with his friend to Olde Queen's Tavern located on the corner of Easton Avenue and Mine Street in New Brunswick. Plaintiff, who had never before been to the tavern, parked on Prosper Street, walked with his friend up Mine Street, and entered the tavern at approximately 11:00 p.m. While walking on Mine Street, plaintiff saw "patches of snow" on the outer part of the sidewalk. The sidewalk was not sanded or salted, but there was a cleared path to walk and plaintiff had no trouble traversing the sidewalk.

The two men left the tavern at approximately 11:30 p.m., exiting the same door they had entered but this time turning left to walk down Easton Avenue. After taking five or six steps, plaintiff's right foot slid forward on black ice and struck an upraised portion of the sidewalk in front of the tavern. Plaintiff fell and sustained a displaced bimalleolar ankle fracture that required surgery. Prior to his fall, plaintiff did not see the ice or the upraised portion of the sidewalk. He saw these conditions after he fell, but did not see any salt or sand on the sidewalk.

Plaintiff filed a complaint, alleging negligent maintenance of the sidewalk. Relying on Gustavson v. Gaynor, 206 N.J.Super. 540 (App. Div. 1985), certif. denied, 103 N.J. 476 (1986), plaintiff filed a motion in limine to bar any reference to his presence inside the tavern or that he had consumed alcohol. In response, defense counsel represented she would not present evidence that plaintiff had consumed alcohol. The trial judge denied the motion, holding that because there would be no evidence that plaintiff had consumed alcohol, Gustavson did not require the barring of any reference to plaintiff's presence inside the tavern. The parties then agreed to a limiting instruction informing the jurors that alcohol played no role in this case. Before testimony began, the judge gave the jury the following instruction:

During this trial, you're going to hear testimony that the plaintiff, Julian Salazar, was inside the defendant's establishment for a period of time immediately prior to this accident.

Now, there will be no evidence or allegation in the case that alcohol contributed or played any role in the happening of this accident. And you are not to speculate that alcohol played any part in the happening of this accident.

After plaintiff and his experts testified, the judge gave the following instruction:

You heard testimony in this case that the plaintiff, Mr. Salazar, was inside the defendant's establishment, Olde Queen's, for a period of time immediately prior to the accident. There has [not] been and nor will there by any evidence or allegation . . . in this case that alcohol contributed or played any role in the happening of the accident. You are not to speculate that alcohol played any role in the happening of this accident.

In addition, in his closing statement, plaintiff's counsel said:

Now, you've all heard testimony about how Mr. Salazar was inside the establishment which is a bar for about 30 minutes before this accident. But I just want to remind you all that there is no evidence whatsoever and there is no allegation by the defendant at all that alcohol played any role at all in the happening of this accident. It's not an issue, it wasn't a part of the accident, it wasn't a cause of the accident.

Plaintiff's liability expert testified that the uneven part of the sidewalk caused water to collect and pond and ice to form, creating an unsafe and hazardous condition. During discovery, defendants maintained they were responsible for the sidewalk's maintenance and repair and there were no repairs made to the sidewalk prior to plaintiff's fall. At trial, however, the tavern's owner testified that prior to the accident, Public Service Electric and Gas Company (PSE&G) had replaced the upraised portion of the sidewalk where plaintiff fell. Although plaintiff's counsel objected to this testimony, the judge did not strike it; rather, the judge gave the following curative instruction:

Folks, just as a point of clarity here, Public Service – some work was, apparently, done by PSE&G at some point in time on Easton Avenue, gas lines or something or other. As a matter of . . . law, Public Service has nothing to do with this case and has no liability at all in this particular case. Something came up with having to do some work, but they have nothing to do and could have as a matter of law, no liability in this case.

The jury subsequently found defendants were not negligent. The jury, thus, did not reach the issue of plaintiff's comparative negligence. Plaintiff filed a motion for a new trial, arguing that: (1) he was prejudiced by defendant's discovery violation regarding PSE&G's replacement of the upraised portion of the sidewalk where plaintiff fell; and (2) although there was no evidence that plaintiff had consumed alcohol, by placing him inside the tavern, the jurors could have impermissibly drawn an inference that he consumed alcohol while inside. The judge determined that defendants committed a discovery violation, but this caused no harm given defendants' admission of responsibility for maintaining and repairing the sidewalk as well as the judge's limiting instruction. However, the judge granted a new trial based on Gustavson, concluding it was prejudicial to place a twenty-one-year-old student inside a "college bar" for thirty minutes, which created circumstantial evidence he had consumed alcohol.

On appeal, defendants contend that because there was no evidence that plaintiff had consumed alcohol, Gustavson does not apply. Alternatively, defendants argue that the judge's limiting instructions cured any conceivable prejudice. Plaintiff counters that although there was no direct evidence he had consumed alcohol, merely placing him in the tavern violated Gustavson. Plaintiff also counters that the discovery violation and reference to PSE&G requires a new trial.

"[A] trial judge shall grant a new trial if, 'having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Little v. Kia Motors Am., Inc., 425 N.J.Super. 82, 92 (App. Div. 2012) (quoting R. 4:49-1(a)). "A jury verdict should be set aside 'only in cases of clear injustice.'" Ibid. (quoting Boryszewski v. Burke, 380 N.J.Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006)). A jury verdict "should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977).

Generally, a motion for a new trial is left to the sound discretion of the trial court. Baumann v. Marinaro, 95 N.J. 380, 389 (1984). However, such discretion "cannot be exercised according to whim or caprice so as to be arbitrary, vague or fanciful, but must be governed by established principles of law and reason concerning whether justice requires that relief be given under the particular facts established in order to obtain a just result." Lindenmuth v. Holden, 296 N.J.Super. 42, 48 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997).

Our review of a motion for a new trial is essentially the same as that of the trial court. Id. at 49. In this regard, we must "defer to the trial court in those areas where the trial court has expertise, or a feel of the case, e.g., the credibility or demeanor of the witnesses[, ]" but, "[o]utside such areas, [we are] permitted to make an independent determination of whether a miscarriage of justice occurred." Ibid. (internal quotation marks omitted). Because the judge in this case based his decision to grant a new trial on the applicability of Gustavson, we accord no deference to his conclusions of law and review issues of law de novo. State v. Smith, 212 N.J. 365, 387 (2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995); Pressler & Verniero, Current N.J. Court Rules, comment 31 to R. 2:10-2 (2013).

In Gustavson, there was no evidence that the defendant was intoxicated at the time of the motor vehicle accident. Gustavson, supra, 206 N.J.Super. at 545-46. Nevertheless, the trial judge permitted the admission of evidence that the defendant had consumed alcohol earlier in the day and stopped at a nightclub shortly before the accident. Id . at 543. We reversed, finding this evidence impermissibly permitted the jury to infer negligence without any corroborating evidence of intoxication. Id. at 545-46.

Gustavson did not bar evidence of a person's mere presence in an establishment that served alcohol. In addition, the facts of the present case differ substantially from those in Gustavson. Here, there was no evidence that plaintiff had consumed alcohol; defense counsel conceded that alcohol played no role in this case; and the judge gave clear limiting instructions that alcohol was not a factor. Jurors are deemed to have followed the judge's instructions absent evidence demonstrating otherwise, which does not exist here. Fitzmaurice v. Van Vlaanderen Mach. Co., 110 N.J.Super. 159, 165 (App. Div. 1970), (citing
Clark v. Piccillo , 75 N.J.Super. 123, 133 (App. Div. 1962), aff'd, 57 N.J. 447 (1971)). We are satisfied that the evidence in this case could not have led to any inference that plaintiff had consumed alcohol. Thus, the trial judge erred as a matter of law in granting a new trial based on Gustavson.

We reach a different conclusion about the PSE&G issue. There is no dispute that defendants maintained throughout the litigation that the sidewalk had not been repaired prior to the accident. Defendants also did not reveal in discovery that PSE&G replaced the upraised part of the sidewalk where plaintiff fell. It was, thus, highly prejudicial for defendants to present this evidence for the first time at trial, as it impermissibly permitted the jury to infer that defendants were not responsible for the unsafe and hazardous condition of the sidewalk. In our view, the judge's curative instruction was insufficient to overcome the prejudicial impact of this evidence. A curative instruction must be immediate and specific in order to alleviate potential prejudice from inadmissible evidence and its substance must be adequate. State v. Vallejo, 198 N.J. 122, 134-35 (2009). Ibid. Here, the curative instruction was inadequate, as it did not instruct the jury that the testimony about PSE&G was improper and the jury must disregard that testimony and not consider it during deliberations.
Verdicchio v. Ricca , 179 N.J. 1, 36 (2004); State v. LaPorte, 62 N.J. 312, 318 (1973).

Affirmed.

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